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Patent Law May Prevent Drug Importation That Seniors
Want
Oct. 22, 2004 Importing drugs to the U.S. may not
be as easy as many senior citizens on Medicare are assuming, according
to an analysis that says patent owners have the right to exclude
importation of their patented drugs.
Many politicians and senior citizens are pushing
for the importation of less-expensive pharmaceuticals from Canada, but
according to research authored by Daniel R. Cahoy of Penn States Smeal
College of Business, legal barriers may prevent government-run plans
from ever working without industry cooperation.
Patent Fences and Constitutional Fence Posts:
Property Barriers to Pharmaceutical Importation, which is forthcoming
in the Fordham Intellectual Property, Media & Entertainment Law
Journal, addresses the liability issues facing government entities
that choose to import U.S.-manufactured pharmaceuticals to circumvent
high prices.
States such as Minnesota, Illinois, and Wisconsin
have recently unveiled drug importation proposals, and municipal
governments in cities such as Boston and Los Angeles have also explored
similar plans. Additionally, at least six drug importation bills were
introduced during the latest congressional term.
U.S. law gives patent owners the right to exclude
importation of patented drugs without their authority. Although state
governments are immune to patent lawsuits in federal court (city and
county governments are not), Cahoy points out that patent holders have
other legal options through their constitutional rights as personal
property owners.
There is no reason that this basic protection of
property rights should not extend to intangible property like patents
when a trespass or infringement is proven, writes Cahoy, an assistant
professor of business law. Although compensation for takings may not
match all of the relief a patent owner may receive under the Patent Act,
the liability could be significant enough to throw a wrench into the
state importation schemes.
Cahoy adds that drug importation supported by the
federal government is also problematic despite the recent surge in
congressional bills. When established property rights are limited or
eliminated by Congress, there are constitutional hurdles that must be
addressed for such changes in the law to stand, he writes. It appears
that the benefits of legal change would either be offset by the costs,
or delayed for an intolerable amount of time.
The research was funded by Smeal's Farrell Center
for Corporate Innovation and Entrepreneurship. To download the complete
article, visit
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=603121.
Copyright: SeniorJournal.com |
